On May 1, 2008, in Lowe v. Philip Morris USA Inc., et al.1, the Oregon Supreme Court rejected a smoker’s bid to mount a medical monitoring class action against five cigarette manufacturers. The court concluded that the plaintiff’s admitted lack of any present physical injury doomed her negligence case.

A clear win for industry, Lowe’s unanimous decision represents the most recent in a series of high court cases refusing to recognize medical monitoring as an independent negligence cause of action where the plaintiff cannot show present injury.2 Indeed, the number of recent cases rejecting the cause of action has prompted some to identify a “clear trend” away from medical monitoring as an independent cause of action. E.g., Victor E. Schwartz, Leah Lorber & Emily Laird, “Medical Monitoring: The Right Way and the Wrong Way,” 70 Mo. L. Rev. 349 (2005) [hereinafter, “Schwartz, et al.”].

Plaintiff Patricia Lowe, a smoker of a pack of cigarettes a day for five years, brought a medical monitoring suit for the negligent manufacture and sale of cigarettes that she alleged contained toxic substances that caused a significantly increased risk of developing lung cancer. Her complaint sought injunctive relief—a court-supervised program of medical monitoring, smoking cessation and education—for herself and for the 400,000-plus members of the class of Oregonians who, like Ms. Lowe, had similarly smoked “five pack years.” Ms. Lowe alleged no present physical harm, but argued the economic cost of “reasonable and necessary” monitoring was sufficient to meet the “harm” or “damages” element of her negligence claim. The trial court dismissed the matter for failure to state a claim because the plaintiff had no present injury, and the Court of Appeals affirmed. Lowe v. Philip Morris USA, Inc., 142 P.3d 1079 (Or. App. 2006).

The Court: Present Physical Injury Is Required

Awareness of the national debate over the propriety of medical monitoring claims animated the Oregon Supreme Court’s analysis. Nonetheless, at least on the thin motion-to-dismiss record before it, the court found no reason to depart from the state’s tort precedent by recognizing a new cause of action.

The court clarified that the plaintiff did not seek damages for fear of cancer, an increased risk of contracting cancer, or the cost of medical care to determine the extent of her harm. Oregon law permits recovery for all such claims upon proper proof of existing injury and other elements. Rather, the court looked at whether the plaintiff’s significantly increased risk of future cancer made periodic medical monitoring at the defendants’ expense reasonable and necessary.

Recognizing that actionable harm must be of a kind that the law protects against negligent invasion, Lowe ruled that neither the threat of future harm nor the economic cost of medical monitoring amounts to the kind of harm a negligence action is designed to address. The court cited to the longstanding principle that liability for purely economic harm, without any accompanying injury to the plaintiff’s person or property, must be predicated upon a duty higher than that of due care, and it found no such additional duty in this case.

Finally, the court refused to modify its existing negligence jurisprudence to create a cause of action requiring the defendants to bear the cost of Ms. Lowe’s medical monitoring. Familiar with the divided decisions from other jurisdictions,3 the court concluded that no such cases provided a basis for overturning Oregon’s well-established negligence precedents governing the case.

Lowe was an easy case for the Oregon Supreme Court, which firmly rejected the plaintiff’s invitation to blur the lines of the state’s negligence law to accommodate a new medical monitoring cause of action. With no allegation of present physical harm, no present physical effect, and no certainty that a future physical harm would follow, the court simply found no occasion to speculate over the “complex issues of science and law” involved in the question of when negligent exposure to toxic substances would cause sufficient harm to support a negligence claim.

Concurrence: Don’t Rule Out Medical Monitoring

Associate Justice Martha Walters was less constrained.

In an opinion destined to be quoted by numerous future plaintiffs, Justice Walters first emphasized her agreement that the lack of present physical injury was fatal to plaintiff’s suit. But she also suggested strategies, including an expansive conceptualization of the “present physical injury” requirement that could permit suit in cases where medical science detects physical effects from the exposure at issue, even if the plaintiff has not yet subjectively experienced disease-related symptoms. These strategies could enable future plaintiffs to bypass Lowe’s restrictions, relegating the case to a footnote in Oregon’s jurisprudence.

First, Justice Walters pointed out that the majority opinion did not reject medical monitoring as a remedy, and she strongly suggested that Oregon law would permit an injured plaintiff to recover a damages award of medical monitoring costs. Medical monitoring is simply “a continuing series of diagnostic tests used to determine the extent of an injury and the appropriateness of treatment,” and Oregon permits an injured plaintiff to recover damages for past, present, and future medical expenses; therefore, “there is no reason that such a plaintiff could not also recover medical monitoring costs.”

With these words, Justice Walters would join others who believe that the medical monitoring remedy is available now in appropriate cases.4 Although she does not so state, Justice Walters’ reasoning suggests that she would also likely contend that medical monitoring is currently available as a remedy in product liability and similar claims, not just those relying on negligence. See, e.g., Sutton v. St. Jude Med. S.C., 419 F.3d 568 (6th Cir. 2006) (finding plaintiff implanted with allegedly defective device had standing to pursue product liability claim based on theory of increased risk of harm, despite lack of present injury, and to seek medical monitoring remedy).

The heart of Justice Walters’ concurrence, however, is its discussion of Oregon’s tort requirement of “present physical harm.” Noting that the court neither defined the term nor ruled that a plaintiff must necessarily experience symptoms, Justice Walters found the concept in Oregon to be wide open: “When science and medicine are able to identify harm before it becomes manifest, and to do so with sufficient clarity, our precedents do not foreclose an action in negligence or the remedy of medical monitoring.”

To illustrate her view that one who has experienced an asymptomatic impact or physical effect should be considered to have a physical injury sufficient to permit a negligence action for medical monitoring, Justice Walters relied on the seminal impact case, Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984), which awarded children surviving a plane crash medical monitoring to diagnose future impact-related injuries, and the state’s Doe v. American Red Cross, 910 P.2d 364 (Or. 1996), which awarded medical monitoring to a plaintiff injected with HIV-contaminated blood but who was without present indication of harm. Extrapolating from these cases, Justice Walters indicated that monitoring should be available at least in other impact and physical effect cases to determine the extent of the injury and whether it is subject to treatment. Though she did not use the words “subclinical,” “cellular level,” or the like, the clear implication of her concurrence is that where medical testing shows subclinical physical effects (even if not experienced as harm), the plaintiff has an injury sufficient to permit a medical monitoring cause of action.

With this suggestion, Justice Walters wades directly into the middle of multi-faceted disputes over how to determine when toxic tort-induced physical injury begins, with many courts finding that early, subclinical effects may amount to physical injuries5, and other courts continuing to require evidence of perceptible disease symptoms before recognizing cognizable physical injuries.6 But she concluded that the court will ultimately have no choice but to navigate those waters: “We will undoubtedly be called upon to consider how to address negligence claims from use of dangerous substances that have caused harm that only scientific or medical testing can disclose.”

Moreover, for her, as for others,7 the suggestion that subclinical injuries or effects detected by medical science can be equivalent to the present physical injuries recognized under traditional tort law is worth exploring because of the significant benefits they believe it can offer. Justice Walters opined that through early monitoring, medical science can potentially identify when medical treatment would limit injuries, preserve life and reduce the damages a defendant is required to pay.

Reaping Economic Benefits, Opening the Floodgates and More

But will these benefits actually accrue? Justice Walters does not dwell on the economic concerns raised by the claims in the case before her. Yet, according to the complaint, the monetary value of the monitoring benefits sought was vast: “no more than $74,000 per person,” or approximately $29.6 billion for the putative class. Such numbers necessarily give rise to concerns about the resources that could be made available to meet these costs, and about the effect that such an award would have on other plaintiffs, including those with more serious alleged injuries. E.g., Wood, 82 S.W.3d at 857 (rejecting medical monitoring cause of action where plaintiff had no present injury in part because flood of less important suits would potentially absorb all resources better left available to those more seriously harmed).

Justice Walters undoubtedly is aware of the floodgates problem raised by many courts and observers. See, e.g., Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W.Va. 1999) (“the practical effect of [this] decision is to make almost every West Virginian a potential plaintiff in a medical monitoring cause of action”) (Maynard, J., dissenting). It is a serious question whether this problem could be adequately addressed through her suggestion that medical science can identify appropriate cases by finding “with sufficient clarity” the requisite physical effects.

Justice Walters also acknowledged that permitting medical monitoring suits by plaintiffs with at best subclinical injuries will inevitably create problems in a tort system where the pleading and proof have historically been framed in the context of symptomatic personal injuries. She refers to statutes of limitations as one such issue that will arise because of the time between the detection of initial, subclinical effects that will, under her suggestion, be given legal status, and the plaintiff’s later experience of symptoms. Noting that this time lag “does not alone present a legal impediment” to a medical monitoring cause of action, Justice Walters apparently postulated the decoupling of claims accrual as calculated for purposes of determining when a claim may first be raised from accrual calculated for purposes of determining the end of the limitations period.

In a similar vein, other courts have raised the problem of potential claim preclusion; that is, that early recognition of an injury for purposes of permitting a medical monitoring cause of action could preclude a suit for the actual disease arising from the same impact or exposure. But see Arch v. American Tobacco Co., 175 F.R.D. 469 (E.D. Pa. 1997) (noting claim preclusion issue but assuming it would not apply because plaintiffs receiving both medical monitoring and damages would not actually receive double recovery).

Conclusion

The Lowe opinion is decidedly cautious, relying on the formal rules of tort law and deferring to the legislature any departures that promise to fundamentally reconceive the state’s tort jurisprudence. This approach seems eminently defensible, especially in a case decided on a motion to dismiss, where the plaintiff admitted she has no present injuries.

Justice Walters’ concurring opinion, by contrast, reflects deeper, as yet unplumbed waters. It seems likely that her concurrence will guide future plaintiffs as they prepare future pleadings, and hope that at some point her views become those of the court.